Salleh Abas FJ

(delivering the judgment of the Court): This is an appeal from the decision of Wan Hamzah J. dismissing the appellant's suit in connection with the transfer of his land held under Certificate of Title No. 1045 Lot 34 Section 69 Town of Kuala Lumpur to the respondent on January 28, 1965. We heard the appeal at our regular sitting in Kuala Lumpur on October 2, 1980 and after hearing submissions of both parties we dismissed it with costs. Here are our reasons for doing so.

The appellant was the owner of the land. In early 1965, he was in need of money in order to prevent a foreclosure action which was about to be taken against the land. He then approached the respondent through the assistance of two brokers, Yuen Fatt (PW2) and Foo Koon Seng (DW2). After an oral agreement was reached, the appellant contacted his solicitors M/s. D.P. Xavier & Thambiah who after taking instructions wrote to the respondent enquiring about the terms of the agreement. In reply thereto the respondent wrote a letter setting out in detail the terms of the agreement and asked the appellant to sign on the letter if he agreed with the terms. That was done and the appellant's solicitors wrote a reply to this letter confirming the appellant's agreement. The terms are contained in Exhibit D2/2 which are as follows:

Joseph K. L. Chong

Chong & Company Kuala Lumpur14th January 1965.

Bilangan Surat Kami JC/P/65

Bilangan Surat Tuan

Messrs. D.P. Xavier & Thambiah,

Advocates & Solicitors,

No. 4 Klyne Street,

Kuala Lumpur.

Dear Sirs,

In reply to your letter dated 12th January 1965 and with reference to our conversation over the telephone, I am to write as follows,—

1. The agreed purchase price of the land under certificate of title No. 10452, Lot No. 340, section 61 in the town of Kuala Lumpur in the District of Kuala Lumpur shall be $36,000.00.

2. I enclose herewith a cheque for $36,000.00 as full payment for the said land. This sum of $36,000.00 is to be retained by you until the transfer of the title of the abovementioned land is completed and the title delivered to me. After the transfer of the land to me free from any charge whatsoever and the delivery of the certificate of title to me, you may release the sum of $36,000.00 deposited with you to the vendor, Mr. A. Kanapathi Pillai.

3. I shall be willing to grant Mr. A. K. Pillai an option to purchase the said land on 19th July 1965 for $37,100.00.

4. In consideration of the option granted to Mr. A. K. Pillai, I shall be willing to allow Mr. Pillai to file a caveat on the above said property.

5. Mr. A. K. Pillai is required to sign a document now to release the caveat, if any, on 20th July, 1965.

6. Mr. A. K. Pillai is required to pay me $30.00 per month as rental for the occupation of the house now occupied by him commencing on 1st February 1965. Mr. A. K. Pillai shall be required to write to all the tenants (a copy of each letter is to be sent to me) on the said land, telling them that I have bought the said land and that all rent due and payable on 1st February, 1965 shall be payable to me or my authorised representative.

It is expressly understood that Mr. A. K. Pillai and you accept the foregoing conditions and I shall be much obliged if you will sign the duplicate of this letter indicating your acceptance, and that all legal fees shall be paid by Mr. A K. Pillai. Yours faithfully, Sgd: Joseph K.L. Chong.

Accepted,

A. Kanapathi Pillai.

As a result of this agreement the land was transferred to the respondent on January 18, 1965 and the option to repurchase the land was given to the appellant on February 15, 1965 at a repurchase price of $37,500. This price was later altered to $38,500 in order to take into account another sum of $1,000 passed over by the respondent to the appellant.

Subsequently the respondent notified Kuala Lumpur Municipality of the change of ownership of the land whilst the appellant in compliance with the terms of the agreement notified the tenants living on the land that